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Friday, January 22, 2010

The Death of Pulse 87 and Air America


This week, the niche music genre of "trance" or techno-dance music (or whatever it's called now) took a serious blow in the New York media market.   For the last two years, station WNYZ held the UHF frequency available at the very bottom of the FM scale -- 87.7 -- and operated under the tag name "Pulse 87."   Then, in late October (and after not paying the bills), Pulse 87 folded and the station reached an agreement to simulcast a Long Island station's programming (your "Party Music Leader").  The Long Island station changed its playlist a little (there was crossover) and even hired a Pulse 87 deejay for evening drive-time, with a strategy to use the simulcast to grow its listener base beyond Suffolk County and into all of New York City and a substantial part of lower Hudson and Northeastern New Jersey (i.e., another 12-14 million people), trying to capture the "Pulse 87" audience and improve its ad revenue.  The advertising potential would seem to be tremendous.   At first glance, one would think this was a potentially brilliant move.

Earlier today, the Long Island station abruptly stopped simulcasting on 87.7 FM.  The station's general manager cited the uncertainty over government regulation of the airwaves as the reason.   In essence, he wrote that station management was unwilling to invest in developing an audience for a station, in the New York media market, because the federal government (through the Federal Communications Commission) could re-regulate its 87.7 UHF frequency to prohibit radio broadcasts and reserve it for television.  This is very significant.   In other words, why invest to build an audience when the government could take the 87.7 frequency off the air at virtually any time?

In fairness, the Low Power television frequencies, which are right below 88.0 megahertz, were not intended to be television broadcasts in name only with the real purpose of being an FM station, available on FM radio, while really being outside the FM range.   There are several stations across the country in the 87.0-87.9 megahertz range.   The real issue, one suspects, is the unavailability of coveted FM band frequencies, particularly in major markets, driving enterprising broadcasters to seek alternate ways of getting to their audience.  It is not clear whether the FCC allows this practice, and much less, whether it will tolerate the practice to continue.  On the other hand, there are many low-audience, public or college stations which are taking up very valuable conventional radio frequencies, driving up the price of available frequencies and also limiting the commercial diversity for the regular, terrestrial radio audience.   Perhaps this practice ought to be halted, before so-called "wildcatter" broadcasters in the 87 FM arena get regulated out of business.   After all, the "free market" is speaking, when stations like Pulse 87 are developing significant audiences despite their placement on the dial.

Business needs stability and certainty.   Business owners and entrepreneurs will be hesitant to start, expand or even maintain their enterprises when government regulations are onerous, arbitrarily enforced or unevenly applied to distort market competition,  or when courts will not enforce basic contractual rights or apply the laws consistently or predictably.    Simple uncertainty over future government regulation killed a growing dance radio station in what is merely the nation's top media market with a base population of at least 12-15 million people.   This should be absolutely appalling.


The Air America network abruptly ceased programming on Thursday afternoon, filing for Chapter 7 bankruptcy.   Air America had started in 2004 as a left-wing counterpoint to the so-called right-wing talk radio hegemony most often (and somewhat incorrectly) identified with Rush Limbaugh.

Having perused this network out of sheer curiosity, I was initially alarmed at how b-o-r-i-n-g the initial hosts were.   Al Franken was painful to listen to, Janeane Garofalo and Montel Williams were even worse.  (It seemed, the bigger the star, the more insufferable the show.)  However, some of the "no-names" seemed both really entertaining and surprisingly informative; it's time to commend Randi Rhodes (who belongs on New York radio), Rachel Maddow (who got her start with a one-hour slot on the network), Thom Hartmann, Alan Colmes and Lionel, and a brilliant (if sometimes way too far-left) weekend radio show called "Ring of Fire" with Robert Kennedy and Mike Papatonio.  Some of the aforementioned were surprisingly even-handed, attacking Democrats from the progressive side with little hesitation.  Maybe the next time this concept is launched, it will be adequately capitalized.  

Eric Dixon is an attorney in New York and New Jersey with significant experience in corporate transactions, regulatory and compliance matters.   He handles corporate investigations, due diligence, litigation, negotiations and dispute resolution. 


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